Appeals

An appeal is when someone that loses at least part of a case asks a higher court (called an "Appellate Court") to review the decision. This is called "to appeal" or "to take an appeal." The person that appeals is called the "appellant." The other person is called the "appellee" or "respondent." Generally in an appeal, a higher court reviews the order or judgment of a lower court to see if there was enough evidence to support the judgment or whether errors of law were committed during or before trial, which prejudiced the appealing party.

If the original decision was made by the Superior Court in an unlimited civil case, the appeal is to the Court of Appeals.

If the decision being appealed from was in a limited civil case or concerned a misdemeanor or infraction, the appeal is to the Appellate Division of the Superior Court.

Most appeals are limited to a review of the record from the lower court. Parties cannot introduce new evidence, but are limited to what was said and introduced at the original trial. The appellate court reviews the lower courtís application of the law to the facts as presented at the trial.

In some cases, however, such as an appeal from a small claims court, the appellate court conducts what is called a "trial de novo," meaning a "trial from the beginning." In those cases, the reviewing court is not bound by the decision of the small claims judge, and new evidence can be presented.

The procedures that apply to appeals are found in California Rules of Court, which may be accessed clicking here. The rules beginning at C.R.C. Rule 8.820 govern appeals to the Appellate Division of Superior Court from limited civil cases. The rules beginning at CRC Rule 8.950 cover appeals from small claims cases. And the rules beginning at CRC Rule 8.850 cover appeals from misdemeanor cases. And the rules beginning at CRC 8.900 cover appeals from infraction cases.

Substantive matters relating to appeals from limited civil courts, misdemeanor, and infraction cases are still governed by statute. These include:

Which judgments and orders are appealable (CCP ß904.2 lists what judgments and orders are appealable in limited civil cases, and Penal Code ß1466 lists the judgments and orders appealable in misdemeanor and infraction cases); infra, ß29).

Timing

In appeals to the Superior Court Appellate Division, a "Notice of Appeal" must generally be filed with clerk of the trial court (i.e. the court where the judgment or order was issued) within 30 days from when the order was made or the judgment rendered. See CRC Rule 8.823 (civil) and 8.853 (criminal); CCP 116.750 (small claims). (In civil cases, Rule 8.823 requires that a notice of appeal be filed either 30 days from when the "notice of entry" of the judgment or order is mailed, or 90 days after entry of the judgment or order, whichever is earliest.)

These time limits are "jurisdictional," meaning that the court has no power to allow additional time for filing the notice of appeal.

The Judicial Council has forms that can be used for filing a Notice of Appeal from a small claims case (SC-140), a traffic/infraction case (CR-142), and a misdemeanor criminal case (CR-132). For appeals from limited civil cases (APP-102).

CRC Rule 8.810 and Rule 8.812 authorizes the appellate court to extend the time or relieve a party from default in relation to many of the things required for prosecuting an appeal, but these rules do not allow the court to extend the time for filing a notice of appeal.

Appointment of Counsel

Pursuant to CRC 8.851, any defendant who is convicted of a misdemeanor and subject to incarceration or a fine of more than $500, or who is "likely to suffer significant adverse collateral consequences as a result of the conviction," can apply for appointment of counsel on appeal. Rule 8.851. If such defendant is eligible for a fee waiver [see Judicial Council form 982(a)(17)(A) for information on fee waivers], the Appellate Division "shall" appoint counsel.

Misdemeanor / Infraction Cases

The "Record on Appeal" in a misdemeanor case consists of those items listed in Rule 8.861. In an infraction case, the record on appeal consists of items listed in Rule 8.912.

(Where the appellant wishes to use a statement on appeal in lieu of a reporter's transcript or electronic recording Rule 8.869, he or she must prepare, serve and file a "Proposed Statement" within 20 days after filing the notice regarding the record of oral proceedings).

This statement, described in Rule 8.869 (misdemeanor), 8.916 (infractions), 8.837 (limited civil) includes the following:

The grounds for the appeal (i.e. a statement of the legal errors the appellant believes were made by the court)

A statement that the appellant intends to request an official transcript of the trial or proceeding being appealed from, or statement summarizing the evidence or trial proceedings relevant to each ground for the appeal. If the trial was recorded, the appellant can obtain a copy of the recording and produce his or her own summary or transcript. If a court reporter was present, the appellant can request that the reporter make a transcript of the trial or other proceedings being appealed from.

See Judicial Council forms CR-135 (misdemeanor) or CR-143 (infraction) that can be used for this Proposed Statement in misdemeanor or infraction cases.

The Prosecuting Attorney / Agency has the right to filed proposed amendments to the appellantís Proposed Statement on Appeal, and the trial judge can correct, change or re-write the statement so it fairly describes the evidence and proceedings in the trial court.

Limited Civil Cases

Within 10 days of filing the notice of the appeal, the appellant must tell the trial court clerk in writing what documents and oral proceedings (if any) to include in the record that will be sent to the Appellate Division. (See Judicial Council form APP-103)

The "Clerkís Transcript" is a compilation of the documents filed in the lower court. The notice filed by the appellant within 10 days of filing the notice of appeal designates which records from the trial court file he or she wants submitted to the Appellate Division. If no specific documents are designated, the clerk of the trial court will prepare the records described in CRC Rule 8.831. Pursuant to Local Rule 4.2.3 A, the court has elected to use the original trial court documents as the record in lieu of a clerk's transcript. A "Reporterís Transcript" is a verbatim record of the oral proceedings in the court. A reporterís transcript is not required for an appeal (since a "statement on appeal" can be used where the proceedings were not recorded by a court reporter or can be effectively summarized without a verbatim transcript), but is often requested. Where the appellant wants to appeal an issue that requires consideration of the oral proceedings (including jury instructions given or refused) he or she must include as part of the designation of records a notice to prepare a reporterís transcript of the oral proceedings. See Rule 8.834. Pursuant to Local Rule 4.2.3 B, the original of an official electronic recording of the trial court proceedings, or a copy made by the court, may be transmitted as the record of these oral proceedings without being transcribed.

This notice must identify the date of each proceeding to be included in the transcript. The trial court clerk transmits this notice to the court reporter(s) that was present at the designated proceeding(s), and the court reporter notifies the appellant of the estimated cost of preparing the reporterís transcript. Within 10 days after notification by the reporter of the cost of the transcript, the appellant must deposit that amount with the clerk.

If the appellant chooses not to request a reporter's transcript and to instead proceed with an "agreed" or "proposed" statement summarizing the evidence or proceedings on which the appeal is based, he or she can proceed as described in Rules 8.836 or 8.837.

Opening Brief

Once the record of the trial courtís proceedings has been prepared, the trial court clerk forwards that record to the Clerk of the Appellate Division for processing. The Appellate Clerk will notify the parties of the briefing schedule (i.e. the dates by which the appellantís opening brief, the respondentís brief, and the appellantís reply brief, are due) . Generally Rule 8.882 gives a party appealing to the Superior Court Appellate Division 30 days from when the record on appeal is transmitted to the Appellate Division in which to file an opening brief.

Per Rule 8.883, the opening brief must concisely describe the law and facts relied on by the appellant in claiming that the trial court erred in making the judgment or order being appealed from. As noted above, function of an appellate court is to review errors of law, not to make factual determinations. A trial court judgment or order will only be reversed if the court made an erroneous ruling on a legal issue or if there was "no substantial evidence" to support the judgment. The opening brief must explain the legal basis for asking the appellate court to reverse the trial courtís judgment or order, with specific reference to the parts of the record and case law or statute supporting each argument made in the appeal.

Abandonment or Dismissal

After the filing of the record with the Appellate Division, the appellant can ask the court to dismiss the appeal by filing a written request under CRC Rule 8.825 (in limited civil cases), Rule 8.855 (in misdemeanor), or Rule 8.904 (in infraction cases). If the appellant fails to file an opening brief by the date allowed in the briefing schedule, or otherwise fails to prosecute it diligently or to comply with applicable rules, the court, on motion by the respondent or on its own motion, can, after notice to the appellant, dismiss the appeal. Rule 8.963.

Fees/Costs

There is no fee for filing an appeal from a criminal case (including misdemeanors or infractions), except for the cost of Reporterís Transcript. In criminal cases, this cost can be waived if the appellant is indigent and if the court finds that a verbatim transcript is "necessary" to the appeal and no alternative means of providing a record of the lower court proceedings is adequate.

In limited civil cases, the fee for filing a notice of appeal is $200 if the complaint was for an amount $10,000 or less and $325 if the complaint was for over $10,000. In addition, there will be a charge for preparation of a Reporterís Transcript if one is requested, and for preparation of the Clerkís Transcript if a valid fee waiver order is not on file. In addition, the prevailing party in an appeal is generally entitled to recover his or her costs, and if the court finds that the appeal was frivolous, he or she may also be subject to monetary sanctions. See Rule 8.891.

Other Resources

Rules of court, statutes, case law and other materials that may be useful to understanding the procedures for prosecuting or defending an appeal, are available at the Fresno County law library on the 6th Floor of the Downtown Courthouse. The phone number for the Library is (559) 600-2227. Please note that the law librarian can only direct you to helpful books and other materials. They cannot answer legal questions or assist you in preparing your case.

The California Rules of Court and Judicial Council forms are also available on-line at http://www.courts.ca.gov/ (Note: this is a link found on Useful Links button on home page) That website also has links to other sources of information and assistance.

If you wish to speak with an attorney concerning your appeal, you can contact:

Fresno County Bar Associationís Attorney Referral Service

(559) 264-0137 They will refer you to an attorney who will discuss your case and answer questions for a charge of $30 for a half-hour consultation.

Central California Legal Services

(559) 570-1200. If you are low-income, you may also be eligible for assistance in civil cases.